Rubin v. Budabin

40 A.D.2d 690 | N.Y. App. Div. | 1972

In an action to recover upon a written instrument described by the parties as a promissory note mad,e by defendants’ testator, defendants appeal from a judgment of the. Supreme Court, Nassau County, entered'-November 30, 1971 in favor of plaintiff, upon a jury verdict. Judgment reversed, on the law, with costs, and complaint dismissed. In our view, the nature and extent of the past and future services allegedly performed by plaintiff for the decedent, her uncle, were insufficient as a matter of law to constitute consideration for the purported note. Clearly, the alleged “ services ” performed by plaintiff fall into the category of gratuitous acts rendered without expectation of payment or reimbursement (41 N. Y. Jur., Negotiable Instruments, § 171 et seq. and cases there cited). Under these circumstances, we do not feel it should have been left to the jury to determine whether or not such alleged services constituted consideration. If We were not dismissing the complaint, we would nevertheless reverse the judgment and grant a new trial for what we deem prejudicial errors in unduly restricting defendants’ cross-examination of plaintiff and for prejudicial statements by plaintiff’s attorney in his summation. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.